Business People Meeting Discussion Communication ConceptAs we blogged Wednesday, this week the Small Business Administration (“SBA”) published a lengthy final rule that implements the long-awaited small business regulation changes mandated by the National Defense Authorization Act (“NDAA”) of 2013. The rule makes a number of very important changes affecting Federal contractors.  One of the more important changes makes it easier for small businesses to form joint ventures (JVs) to compete for government procurements and removes prior, and often confusing, restrictions.

A JV will now be considered as a small business for Federal procurement purposes as long as each individual JV partner would qualify alone as a small business under the relevant contract.  Essentially, this rule expands the exception to affiliation for all joint ventures where both concerns making up the JV are individually “small.” Of course, each small business must not otherwise be affiliated for different reasons.

Currently, in addition to the exclusion from affiliation given to an 8(a) protégé firm that joint ventures with its SBA-approved mentor for any small business procurement, there is also an exclusion from affiliation between two or more small businesses that seek to perform a small business procurement as a JV where the procurement is bundled or large (i.e., the value of the procurement is greater than half the size standard corresponding to the NAICS code assigned to the contract – for revenue based size standards, or $10 million for employee-based size standards).

The new rule, however, expands and clarifies this exception to affiliation, allowing small businesses to joint venture as long as both are small, regardless of the value of the procurement.  Thus, the size of the procurement no longer presents a restriction.   

The final rule takes effect on June 30, 2016.

Michael H. Payne is the Chairman of the firm’s Federal Contracting Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution.

Robert G. Ruggieri is a Senior Associate in the firm’s Federal Contracting Practice Group. He practices law in the areas of government contracts, procurement, and construction and has significant experience assisting small businesses with teaming and joint venture agreements.

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Photo of Michael H. Payne Michael H. Payne

As Chair of the firm’s growing Government Contracting Group, Michael H. Payne represents contractors, subcontractors, and suppliers on a wide range of federal contracting issues, including the interpretation of solicitation and contract provisions, the filing of bid protests, resolution of disputes, and the…

As Chair of the firm’s growing Government Contracting Group, Michael H. Payne represents contractors, subcontractors, and suppliers on a wide range of federal contracting issues, including the interpretation of solicitation and contract provisions, the filing of bid protests, resolution of disputes, and the preparation of contract claims and the litigation of appeals. Michael has vast experience in federal government contracting, stemming from his time as Chief Trial Attorney for the North Atlantic Division of the Army Corps of Engineers, and is recognized in the federal construction contracting industry as an attorney who enjoys a good working relationship with government agencies.

Michael’s high success rate in settling cases prior to litigation has earned him clients that rely on his advice in the long term. As a trusted advisor to his clients, he is known for his responsiveness and is not afraid to be straightforward about the realities of pursuing a case.

Michael is aggressive when called for and approaches each case analytically and develops strategies for his clients’ best long-term results. He thinks outside the box and frequently develops arguments in approaches that facilitate the resolution of disputes without litigation.

With in-depth knowledge of military and civil works construction, Michael represents clients before the Armed Services Board of Contract Appeals (ASBCA), the Government Accountability Office (GAO), the United States Court of Federal Claims, and a number of Federal District and Appellate Courts, including the United States Court of Appeals for the Federal Circuit. Throughout his career, he has enjoyed a strong relationship with the dredging industry, representing many dredging contractors nationwide.

Known in the legal community as a techie, Michael always uses the latest technology to practice law more efficiently. He regularly teaches other attorneys at the firm and local bar associations how they can use devices such as iPads to enhance their practices. Michael started the Federal Construction Contracting Blog, the first blog focused on federal construction contracting,  which is still a go-to resource for the industry.

Photo of Robert Ruggieri Robert Ruggieri

Robert G. Ruggieri focuses his practice in the areas of government contracts, procurement, and construction. His clients, which include prime contractors, subcontractors, and suppliers, routinely seek his advice in protesting government procurement decisions, size and NAICS code protests, interpreting the Federal Acquisition Regulation…

Robert G. Ruggieri focuses his practice in the areas of government contracts, procurement, and construction. His clients, which include prime contractors, subcontractors, and suppliers, routinely seek his advice in protesting government procurement decisions, size and NAICS code protests, interpreting the Federal Acquisition Regulation (FAR), preparing Requests for Equitable Adjustment (REAs), prosecuting claims under the Contract Disputes Act (CDA), and responding to government investigations, suspensions, and debarment proceedings.

Bob also assists small businesses in federal contracting with teaming and joint venture agreements, federal business ethics compliance, SBA 8(a), HUBZone, SDVOSB, WOSB & EDWOSB, WBE/MBE/DBE certifications and appeals, and federal government mentor-protégé agreements.

Bob has enjoyed considerable success for clients prosecuting and defending bid protests at the Government Accountability Office and the United States Court of Federal Claims. Similarly, Bob has successfully litigated contract disputes throughout the country in federal and state forums. He regularly handles a wide variety of complex construction claims, including claims relating to delays, inefficiency, differing site conditions, defective plans and specifications, acceleration, and lost productivity. Types of projects he has handled over the years include marine construction, dredging projects, bridges, roads, environmental cleanups, power plants, municipal convention centers, office buildings, residential complexes, wastewater treatment plants, and schools.

Notwithstanding his extensive litigation experience, Bob recognizes the benefits of resolving contract disputes at an early stage through negotiated settlements or alternative dispute resolution mechanisms, such as mediation, before the onset of extensive and costly discovery efforts.

Bob is a contributor to the firm’s Federal Construction Contracting Blog, and he previously served as associate editor of the Construction Law Now blog.